1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL A. CLEMONS, No. 2:18-cv-2463-TLN-EFB PS 12 Plaintiff, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 MATHEW C. MCGLYNN, et al. 15 Defendants. 16 17 Plaintiff seeks leave to proceed in forma pauperis pursuant to 28 U.S.C. 1915.1 His 18 declaration makes the showing required by 28 U.S.C. §1915(a)(1) and (2). See ECF No. 2. 19 Accordingly, the request to proceed in forma pauperis is granted. 28 U.S.C. § 1915(a). 20 Determining that plaintiff may proceed in forma pauperis does not complete the required 21 inquiry. Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 22 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 23 which relief may be granted, or seeks monetary relief against an immune defendant. As discussed 24 below, plaintiff’s complaint must be dismissed for lack of jurisdiction.2

25 1 This case, in which plaintiff is proceeding in propria persona, was referred to the 26 undersigned under Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1).

27 2 Plaintiff has also filed two requests for extensions of time to serve the defendants with a copy of the summons and complaint. ECF No. 3 & 4. Because plaintiff is proceeding in forma 28 pauperis, he is not required to personally complete service. See 28 U.S.C. § 1915(d). More 1 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 2 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 3 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 4 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 5 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff’s obligation to provide the ‘grounds’ of 6 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 7 a cause of action’s elements will not do. Factual allegations must be enough to raise a right to 8 relief above the speculative level on the assumption that all of the complaint’s allegations are 9 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 10 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 11 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 12 Under this standard, the court must accept as true the allegations of the complaint in 13 question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976), construe the 14 pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, 15 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must satisfy the pleading 16 requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 8(a)(2) requires a 17 complaint to include “a short and plain statement of the claim showing that the pleader is entitled 18 to relief, in order to give the defendant fair notice of what the claim is and the grounds upon 19 which it rests.” Twombly, 550 U.S. at 555 (citing Conley v. Gibson, 355 U.S. 41 (1957)). 20 This action arises out of a 2006 child custody dispute between plaintiff and the mother of 21 his two children. ECF No. 1 at 7. Liberally construed, the complaint alleges that plaintiff was 22 initially ordered to make child support payments. Id. At the mother’s request, the child support 23 case was ordered closed. Id. Plaintiff claims, however, that “to this date this case remains open 24 against” his and the mother’s request. Id. 25 Plaintiff also alleges that in May 2014, defendant Judge Mathew McGlynn awarded 26 guardianship of plaintiff’s two minor children to their maternal grandmother. Id. at 7. He claims 27 significantly, because the action must be dismissed without leave to amend for lack of subject 28 matter jurisdiction, the requests are moot. 1 that the grandmother was able to obtain the guardianship by using a fictitious name and changing 2 the spelling of his name. Id. Plaintiff further alleges that Judge McGlynn refused to hear his case 3 because it was not properly served on the maternal grandmother. Id. at 8. Plaintiff also alleges 4 that in subsequent state court proceedings, defendant Kristina Crisosto—a social worker for the 5 County of Tehama and the material aunt of plaintiff’s children—falsely accused plaintiff of 6 “felony child abduction.” Id. at 7-8. Plaintiff attempted to introduce evidence that Crisosto was 7 lying, but Judge McGlynn allegedly refused to allow plaintiff’s evidence. Id. at 8. Thereafter, 8 defendant Judge Laura Woods appointed Crisosto as the children’s prospective successor 9 guardian. Id. Judge Woods allegedly conceded that the decision to make that appointment was 10 based on her working relationship with Crisosto. Id. 11 Plaintiff subsequently received a notice of hearing in relation to a child support case, but 12 he declined to attend the hearing because his name was spelled incorrectly on the notice.3 Id. 13 Two months later, plaintiff received notice that he was behind on child support payments owed to 14 his children’s mother. Id. Then in May 2016, plaintiff was arrested after defendant Jeri Hamlin, 15 a Child Support Commissioner, issued a warrant for his arrest due to failure to pay child support. 16 Id. The Tehama County District Attorney, defendant Greg Cohen, subsequently filed charges 17 against plaintiff, which were eventually dismissed. Id. Plaintiff claims that defendants violated 18 18 U.S.C. § 242 and plaintiff’s rights under the Fifth, Eighth, and Fourteenth Amendments to the 19 United States Constitution. Id. at 5. 20 It is clear from plaintiff’s allegations that he seeks relief from child custody rulings issued 21 by state courts. Indeed, plaintiff specifically requests “injunctive relief vacating defendants [sic] 22 orders.” Id. at 6. This court is not the proper court for plaintiff to appeal from state court orders. 23 Indeed, this court lacks jurisdiction to review errors in state court decisions. Dist. of Columbia 24 Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 25 413, 415 (1923); see also Samuel v. Michaud, 980 F. Supp. 1381, 1411 (D. Idaho 1996) (“The 26 district court lacks subject matter jurisdiction either to conduct a direct review of a state court 27 3 Plaintiff’s name is Michael A. Clemons, but the notice was allegedly directed at 28 Michael I. Clemons. ECF No. 1 at 1, 8. 1 judgment or to scrutinize the state court’s application of various rules and procedures pertaining 2 to the state case.”). The court is also without jurisdiction pursuant to the domestic relations 3 exception to federal jurisdiction, which “divests the federal courts of power to issue divorce, 4 alimony and child custody decrees.” Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992); see 5 also Coats v. Woods, 819 F.2d 236, 237 (9th Cir. 1987) (courts “traditionally decline to exercise 6 jurisdiction in domestic relations cases when the core issue involves the status of parent and child 7 or husband and wife.”). Because the core issue in this action concerns matters relating to child 8 custody, this court lacks subject matter jurisdiction. 9 Furthermore, plaintiff’s claims against Judge McGlynn, Judge Woods, and Commissioner 10 Hamlin are barred by judicial immunity. See Stump v. Sparkman, 435 U.S. 349, 360-61 (1978) 11 (“Because the court over which Judge Stump presides is one of general jurisdiction, neither the 12 procedural errors he may have committed nor the lack of a specific statute authorizing his 13 approval of the petition in question rendered him liable in damages for the consequences of his 14 actions.”); Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988) (per curiam) (“Judges are 15 absolutely immune from damages actions for judicial acts taken within the jurisdiction of their 16 courts . . . A judge loses absolute immunity only when [the judge] acts in the clear absence of all 17 jurisdiction or performs an act that is not judicial in nature.”); Franceschi v. Schwartz, 57 F.3d 18 828, 830 (9th Cir. 1995) (judicial immunity extends to municipal court commissioners 19 performing judicial functions, which includes issuing warrants). Likewise, District Attorney 20 Greg Cohen is also entitled to absolute immunity for acts taken in his official capacity. See 21 Kalina v. Fletcher, 522 U.S. 118, 123-24 (1997); Buckley v. Fitzsimmons, 509 U.S. 259, 269-70 22 (1993); Imbler v. Pachtman, 424 U.S. 409, 427, 430–31 (1976) (holding that prosecutors are 23 immune from civil suits for damages under § 1983 for initiating prosecutions and presenting 24 cases). 25 For the reasons stated above, plaintiff’s complaint must be dismissed for lack of subject 26 matter jurisdiction. Further, plaintiff’s allegations clearly demonstrate the absence of jurisdiction, 27 which he could not possibly cure with amendment. Silva v. Di Vittorio, 658 F.3d 1090, 1105 (9th 28 Cir. 2011) (“Dismissal of a pro se complaint without leave to amend is proper only if it is 1 | absolutely clear that the deficiencies of the complaint could not be cured by amendment.” 2 || Gnternal quotation marks omitted). 3 Accordingly, IT IS ORDERED that: 4 1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted; and 5 2. Plaintiff’s motions for extension of time to serve defendants (ECF Nos. 3 & 4) are 6 | denied. 7 Further, it is RECOMMENDED that: 8 1. Plaintiffs complaint be dismissed without leave to amend for lack of subject matter 9 | jurisdiction; and 10 2. The Clerk be directed to close the case. 11 These findings and recommendations are submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 13 | after being served with these findings and recommendations, any party may file written 14 | objections with the court and serve a copy on all parties. Such a document should be captioned 15 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 16 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 17 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 18 || DATED: September 30, 2019. 19 tid. HDeMA

EDMUND F. BRENNAN

UNITED STATES MAGISTRATE JUDGE

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